"The Dark Side of Internet Freedom"

Mary L. Dudziak

With the uprising in Egypt, fueled by social networking, dominating the news, it may be jarring to read Lee Siegel's review of a "brilliant and courageous book," THE NET DELUSION: The Dark Side of Internet Freedom by Evgeny Morozov in today's New York Times.

Morozov is interested in the Internet’s political ramifications. “What if the liberating potential of the Internet also contains the seeds of depoliticization and thus dedemocratization?” he asks. The Net delusion of his title is just that. Contrary to the “cyberutopians,” as he calls them, who consider the Internet a powerful tool of political emancipation, Morozov convincingly argues that, in freedom’s name, the Internet more often than not constricts or even abolishes freedom.

The twittered Iranian revolution was crushed:  "The elements of a successful revolution — the complicity of the military, of a powerful political class, of an almost universally discontented population — simply weren’t there."  The internet itself aided repression, as "the Iranian regime used the Web to identify photographs of protesters...and to text the population into counterrevolutionary paranoia."  Continue reading here.

No mention is made of Egypt in this nevertheless very timely and sobering review, but Siegel writes that the book "is immediately tested by events" in Egypt in a recent Arts Beat post.  "Just as with every other type of technology of communication, the internet is not a solution to human conflict but an amplifier for all aspects of a conflict. As you read about pro-government agitators charging into crowds of protesters on horseback and camel, you realize that nothing has changed in our new internet age."

Cross-posted from the Legal History Blog's Sunday book review round-up.
Posted 12:48 PM by Mary L. Dudziak [link]

Is the U.S. a "full democracy" instead of a "flawed democracy"?

Sandy Levinson

Charles Blow's column in today's New York Times is typically interesting, as he looks at a variety of data in different countries across the globe with regard to understanding social unrest. The United States, for example, has the largest geni coefficient (where bigger is not better) with regard to inequality of any of the countries he examines. What interests me, though, is that he describes Israel (along with Cyprus) as "flawed democracies' while the United States is listed as a "full democracy." I know nothing about Cyprus. But I do know a fair amount about Israel, and I'm perplexed by Israel's and the U.S. being put in a different category re "democracy." It is not that I'd describe Israel as a "full democracy," whatever that precisely means (Blow isn't telling), but, rather, that I'd definitely put the U.S. in the catagory of a distincltly "flawed" democracy. And the reason isn't that we elected a Republican House, any more than one would stop simply with Israel's electing Netenyahu as their PM. I won't rehearse all of the deviations from any acceptable 21st century of democracy in our own political system. The Senate itself is enough to establish our membership in the list of "flawed democracies." Israel, of course, suffers from an access of one version of "represenative government," whereby the Knessett is open to any party that can get more than 1-1/2% of the national vote, and the fragmentation of the party system (and of Israeli society) means that very small parties can engage in successful extortion in order to get their votes to join an inevitably fragile coaltion. But I suspect that there are fewer barriers to actual voting in elections in Israel by Israeli citizens (including the 20% of Israeli-Arabs) than there are in this country. [Update: And, as Frank Rich notes in his column in tomorrow's Times, El Jazeera English "is routinely available in Israel," unlike the good old U.S.A., whose principal television media are controlled by feckless cowards (perhaps afraid that they will be harassed by right-wingers in Congress should they open up their channels to what many of them undoubtedly simplistically define as "the enemy").]

Israel is surely a "flawed democracy" with regard to the discriminations it practices against its Arab citizens, which have been well documented. (The issue of Israeli policy vis-a-vis the Arabs living in occupied territories is the subject for other discussions, and I am appalled by many aspects of Israeli policy, but I'd be a bit surprised if that is the reason for the characterization of Israel as a "flawed democracy." One wonders, sometimes, if the policies increasingly being adopted with regard to "illegal aliens" are much better than many of the objectionable policies of Israel vis-a-vis inhabitants of the West Bank.) With regard to discrimination against citizens, though, there is much in the American record, including, say, the mass disenfranchisement of felons, that might lead a neutral observer to talk about "flaws." And so on.

In any event, I'd be very interested in knowing what Blow's criteria were that allowed American exceptionalism to appear as part of an otherwise extremely interesting column.

UPDATE: A REPONDENT SUGGESTED THAT BLOW WAS DRAWING HIS CRITERIA FROM THE ECONOMIST INGELLIGENCE UNIT'S REPORT ON DEMOCRACY IN 2010. It's certainly worth taking a look at this Report. As a matter of fact, the U.S. ranks near the bottom of the "full democracies," behind most of the European countries (but not France or Italy, which are "flawed," but, interestingly enough, both (accurately) deemed to have better electoral systems than tha U.S.).
Posted 4:16 PM by Sandy Levinson [link] (64) comments

A Wake-Up Call on Severability Doctrine

Guest Blogger

Kevin Walsh

One of the most surprising aspects of Judge Vinson's decision holding the individual mandate unconstitutional was his further holding that the entire Patient Protection and Affordable Care Act was unenforceable. Judge Vinson determined that the mandate could not be severed from the constitutional remainder of the Act, thus causing the mandate's invalidity to metastasize throughout the Act . If sustained on appeal, this ruling would wipe out many provisions of the Act, including those already in effect, that have nothing to do with health insurance. (Michael Dorf discusses some of these here.)

Some have charged that Judge Vinson's decision was driven by partisan or ideological considerations (see, for example, the posts linked to here>). On this view, his inseverability-based in toto invalidation is but one aspect of an antipathy to the Act manifested throughout his opinion. There may be something to this criticism, but a too-ready, too-knowing recourse to an ideological or attitudinal explanation can obscure other important issues, such as the way in which flawed doctrine abets bad judicial decisionmaking.

Because severability doctrine does not receive much attention, many have not previously noticed that it is broken. Yet it is hard to ignore now. Perhaps one virtue of Judge Vinson's decision, then, will be to cast on a light on the sorry state of modern severability doctrine (about which I have previously written here).

Judge Vinson’s application of severability doctrine was mistaken in some of its particulars and probably wrong in its ultimate conclusion. The difficulty with drawing a stronger bottom-line conclusion is that the doctrine calls for backward-looking counterfactual speculation about whether Congress would have enacted the remaining provisions of the PPACA without the unconstitutional individual mandate. If this question is viewed wholesale, as Judge Vinson viewed it (i.e., would Congress have enacted everything else in the Act absent the individual mandate?), then the conclusion of inseverability is reasonable, though by no means beyond question. After all, the PPACA probably would not have existed but for the individual mandate. If this question is viewed on a provision-by-provision basis (i.e., would Congress have enacted Provision X, or Provision Y, or Provision Z absent the individual mandate?), then the conclusion of complete inseverability is on much weaker footing. The real problem with the doctrine, though, is that it calls for a series of imponderable “what ifs” about which reasonable people can disagree. That level of indeterminacy is unacceptable given that resolution of those imponderables can have massive consequences--as vividly seen here.

Judge Vinson's decision reintroduces a potent pairing previously seen in the 1930s (and not seen since then): a constitutional holding that Congress has exceeded its power under the Commerce Clause, joined with an inseverability holding that expands invalidity beyond unconstitutionality. The Supreme Court's use of severability doctrine to invalidate New Deal legislation triggered Robert L. Stern’s seminal scholarly analysis of severability, which appeared in 1937. After a thorough canvass of the development of modern severability doctrine from its first appearance in 1854 through when he wrote in 1937, Stern failed to find an organizing principle. He concluded, instead, that “the Court avails itself of one [severability] formula or another in order to justify results which seem to it to be desirable for other reasons.”

This criticism, and others leveled by Stern and later analysts, has never been adequately answered. Instead, the pressure on severability doctrine in federal law abated as the Court showed greater receptivity to New Deal legislation as a matter of substantive constitutional law. But while Judge Vinson's opinion reveals that history can repeat itself, there is good reason to believe that the current Supreme Court will be much more cautious in approaching the question of inseverability.

Although the Court has maintained a similar verbal formula for severability over time, its application of that doctrine has been much more restrained than in the decisions that prompted Stern to write. For different reasons, the Court's pragmatists, minimalists, and textualists have good reason to move severability doctrine away from the sort of backward-looking counterfactual speculation that yielded Judge Vinson's holding of inseverability (i.e., the determination that the individual mandate was inseverable from the remainder of the Act because Congress would not have enacted the Act without the mandate). While a detailed doctrinal analysis to support this assertion would be more appropriate for another venue, a careful review of the Court's severability reasoning in United States v. Booker and Free Enterprise Fund v. Public Company Accounting Oversight Board suggests directions in which the Court may be moving the doctrine. Justice Breyer’s pragmatic approach to severability in Booker is more forward-looking and consequentialist than the standard approach. Chief Justice Robert’s approach to severability in Free Enterprise Fund emphasizes the need for clear evidence that Congress intended inseverability; given the typical absence of such evidence, the result of this approach is minimalist with respect to the scope of invalidation (though the pragmatic approach is more likely to be minimalist with respect to practical consequences). Finally, textualist Justices eschew, in other contexts, the sort of exercises in imaginative reconstruction that standard formulations of severability doctrine on their face require. Perhaps they might begin to do so in this context as well. For all these reasons, it is extremely unlikely that the Supreme Court would conclude both that the individual mandate is unconstitutional and also that the remainder of the Act is inseverable.

While most attention, rightly, has been paid to the the constitutional issues, the district court’s ruling in Florida v. HHS demonstrates the importance of attending to severability doctrine as well. Paying attention now should yield dividends in the not-too-distant future, as the lessons of the past can inform the shape this doctrine takes going forward.

Kevin C. Walsh is an Assistant Professor at the University of Richmond School of Law. You can reach him by e-mail at kwalsh at richmond.edu
Posted 6:00 AM by Guest Blogger [link]

A Message from the Founder of PIMCO

Frank Pasquale

As Bryce Covert notes, "pay on Wall Street broke a record last year, hitting $135 billion" out of firm revenue of $417 billion. "Legerdemath" helps drive those results; as one former member of a corporate derivatives team puts it, "whenever possible we used our superior knowledge to manipulate the pricing of the trade in our favor." And pity the poor pension fund that asks for some help in currency trading.

Folks like Jack Bogle have long lamented these sharp practices. Now Bill Gross, the founder of PIMCO, has a stinging indictment of Wall Street as well:

As a profession we have failed miserably at our primary function – the efficient and productive allocation of capital: The S&L debacle of the early 1980s, the Asian crisis, LTCM, dotcoms, subprimes, Lehman and the resurrection, instead of the reformation, of Wall Street, are major sins of the modern era of money. . . .

Read more »
Posted 3:42 PM by Frank Pasquale [link]

Symposium on Access to Knowledge in the Age of Intellectual Property

Frank Pasquale

Readers interested in the Access to Knowledge movement may want to take a look at an online symposium on the new book Access to Knowledge in the Age of Intellectual Property. It's running till Thursday at Concurring Opinions. This book, edited by Gaëlle Krikorian and Amy Kapczynski, is available for free download here, and can also be purchased here. Here is a quote from the introduction that gives a sense of the book's themes:

In a hospital in South Korea, leukemia patients are expelled as untreatable because a multinational drug company refuses to lower the price of a life-saving drug. Thousands of miles away, a U.S. group called the Rational Response Squad is forced by the threat of a copyright lawsuit to take down a YouTube video criticizing the paranormalist Uri Geller. Could we—should we—see these two events, so seemingly remote from one another, as related? Yes—or such is the premise of a new political formation on the global stage, one that goes under the name of the “access to knowledge movement”—or more simply, A2K.

A2K is an emerging mobilization that includes software programmers who took to the streets to defeat software patents in Europe, AIDS activists who forced multinational pharmaceutical companies to permit copies of their medicines to be sold in South Africa, and college students who have created a new “free culture” movement to “defend the digital commons”—to select just a few. A2K can also be seen as an emerging set of theoretical commitments that both respond to and reject the key justifications for “intellectual property” law and that seek to develop an alternative account of the operation and importance of information and knowledge, creativity and innovation in the contemporary world.

Krikorian and Kapczynski have assembled a top-notch group of contributors, and this work is one of the definitive collections on global social justice movements in the digital age.
Posted 9:02 PM by Frank Pasquale [link]

Non sequiturs in the Florida health care decision

Andrew Koppelman

The debate over the constitutionality of mandatory health insurance is a placeholder for two different constitutional visions. Health care reform is only the latest manifestation of the New Deal vision of a society whose members are economically secure and protected from the otherwise brutal effects of market forces. Opponents of the mandate envision a radical revision of constitutional law that severely restricts Congress’s authority: if market forces step on you, you’re on your own. Which vision one adopts is, perhaps, a matter of ultimate value judgment, immune to argument. One can, however, ask whether the radicals’ constitutional vision is internally consistent and hangs together logically.

So Judge Roger Vinson’s recent opinion invalidating the law is revealing. The decision is such a bizarre collection of non sequiturs that reading it should have a sobering effect even on those who share his political vision.

Read more »
Posted 2:42 PM by Andrew Koppelman [link]

Reading the Tea Leaves in Vinson's Ruling

Frank Pasquale

NYT reporter Kevin Sack notes that Judge Vinson tips his hand in his health care ruling by referencing, out of the blue, colonial tea policy. This isn't dog-whistle opinion writing, but red meat for those with a certain vision of red America.

At Health Affairs, Tim Jost patiently dismantles the opinion. He concludes:

This is a radical decision. Judge Vinson has a clear vision of the limited federal government the founders intended that is very much in line with that espoused by the Tea Party Movement. He mourns the fact that the Supreme Court has allowed Congress to assume control over much of the American economy, and grasps any toehold he can find in precedent to push back against that authority. Despite repeated cautions in governing precedent that the courts should defer to congressional judgments in economic matters where rational, Judge Vinson is confident in the wisdom of his own judgments and readily substitutes them for those of Congress. . . .

But the ramifications of this case go far beyond the minimum coverage requirement. We will see what the courts of appeal and ultimately the Supreme Court do with this opinion. If it is upheld, it will mean a dramatic contraction of the authority of Congress. . . .

What I find most disheartening is that someone with the health care knowledge of Jost has to get bogged down in a fight like this. He's written a series of excellent posts on topics including medical loss ratios, preventive services, a patient bill of rights, grandfathered plans, tax exempt hospitals, the small employer tax credit, the Web portal, reinsurance for early retirees, and young adult coverage. If we had a rational health care debate, we'd be focusing on practical issues like these--rather than, as Jack puts it, a faux "defense of liberty" that is little more than a "defense of selfishness."
Posted 6:59 PM by Frank Pasquale [link]

Giving Originalism a Bad Name

David Gans

Chief Judge Vinson’s opinion, issued yesterday, profoundly misinterpreted the Constitution in order to justify striking down the Patient Protection and Affordable Care Act. In his opinion, Judge Vinson invoked a highly selective, skewed version of our Constitution’s text and history. Relying heavily on the work of a few conservative originalists, Chief Judge Vinson’s opinion ignored or dismissed every piece of evidence to the contrary, including the Framers’ understandings of the scope of the powers of the federal government and Marshall Court’s canonical cases construing the Commerce Clause and the Necessary and Proper Clause.

In Vinson’s telling, the Commerce Clause was designed by the Framers of the Constitution to be a narrow grant of power, which permitted Congress to regulate trade between the states, and to eliminate discriminatory trade restrictions between the states. But his suggestion that Congress’ authority under the Commerce Clause was limited to matters of trade has no support in history, and is contrary to binding Supreme Court precedent, rulings that Vinson, as a lower court judge, is supposed to follow.

In 1824, in Gibbons v. Ogden, one of the most important Supreme Court cases interpreting the Commerce Clause, the Court considered and rejected the very same argument. As Chief Justice Marshall explained in Gibbons: “This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations in all its branches . . . .” In the Federalist Papers, James Madison said much the same thing, making clear that the Commerce Clause gave the federal government the power to regulate intercourse between the states.

Marshall rejected a narrow construction of the Commerce Clause, and for good reason. A cramped understanding of Congress’ explicitly enumerated powers would thwart the Framers’ allocation of powers between the federal government and the states. While states were to retain very wide authority, the Constitution gave Congress broad powers in Article I, including the power to regulate commerce among the states, to give the federal government the power to solve national problems that states could not solve on their own. The Constitution’s Framers recognized that Congress should enjoy the authority to “legislate in all Cases for the general interests of the Union, and also in those cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual legislation.” This history has been told lately in superb works by Akhil Amar and Jack Balkin, but Vinson ignored it.

Vinson’s trade theory is inconsistent with not one, but two, of Chief Justice Marshall’s landmark opinions. In McCulloch v. Maryland, a few years before Gibbons, Chief Justice Marshall embraced a broad understanding of congressional power under Article I, holding that the Constitution gave Congress the power to charter a national bank. “[A]mong the enumerated powers of government . . ., we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce . . . . The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to the government. . . .[A] government, intrusted with such ample powers, on due execution of which the happiness and prosperity of the nation so vitally depends, must also be intrusted with ample means for their execution.” Vinson’s opinion does not reflect this broad understanding of federal power under the Commerce and Necessary and Proper Clauses.

In Chief Judge Vinson’s version of Supreme Court history, the Marshall Court hardly figures at all. According to Vinson, the history of the Commerce Clause in the Supreme Court begins with the Lochner era, which repeatedly limited the power of the federal government under the Commerce Clause, invalidating federal legislation designed to protect workers and consumers from powerful corporations. Vinson writes, “for most of the first century and a half of Constitutional government . . . the Clause was given a ‘miserly construction,’” quoting with approval a 1983 concurring opinion authored by Justice John Paul Stevens. In the process, Vinson turns the Stevens opinion on its head. Justice Stevens called the Lochner era precedents “miserly” because they departed from the Framers’ design “to confer a power on the Federal Government adequate to discharge its central mission,” and were properly repudiated on that basis, but for Vinson, the Lochner era precedents are foundational, and correct. Chief Judge Vinson looks to them precisely because they gave a cramped reading to the powers of the federal government. Guided by the rulings of the Lochner era, it’s no wonder that Chief Judge Vinson finds the Patient Protection and Affordable Care Act wanting.

It’s rare to find a lower court ruling that is so badly out of line with both text and history and so many foundational Supreme Court precedents. Vinson’s opinion should arrive at the Eleventh Circuit dead on arrival.

David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center. This post is cross-posted at Text and History.
Posted 5:32 PM by David Gans [link]

The Civic Republican Roots of the Individual Mandate

JB

As a protest against the individual mandate, several South Dakota legislators have introduced a bill requiring citizens to purchase a gun for self-defense.

Rep. Hal Wick, R-Sioux Falls, is sponsoring the bill and knows it will be killed. But he said he is introducing it to prove a point that the federal health care reform mandate passed last year is unconstitutional.

“Do I or the other cosponsors believe that the State of South Dakota can require citizens to buy firearms? Of course not. But at the same time, we do not believe the federal government can order every citizen to buy health insurance,” he said.

The irony, of course, is that this is an example of what the federal government could require citizens to do at the founding. All able bodied male citizens were part of the militia, and therefore were required to bear arms in defense of the state. In fact, the federal government passed a militia act in 1792 that required that every citizen purchase a weapon and ammunition.

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia . . . That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service . . . .

The requirement to join the militia (and purchase arms for the defense of the state) was an aspect of civic republicanism-- the political idea that citizens had a duty to work toward the public good and make sacrifices on behalf of their fellow citizens and the republic (the res publica, or public thing). Hence citizens were automatically made part of the militia, and this mean that they might be called upon to lay down their lives for their fellow citizens and the republic. The country was founded on this civic republican ideal as well as a belief in individual liberty and democratic self government.

What is lost in the debate over the individual mandate is that the point of the individual mandate is also civic republican in nature. It requires citizens to make a far less significant but also public-spirited sacrifice on behalf of other Americans who cannot afford health insurance. Individuals must join health insurance risk pools to make health care affordable for more of their fellow citizens. This is a very modest request that individuals not be entirely selfish and that they contribute to the public good in a small way by helping to make health care accessible and affordable for all Americans. Indeed, under the terms of the Affordable Care Act, one doesn't even have to purchase insurance; one can simply pay a small tax instead. And one doesn't have to pay at all if one is too poor to do so or has a religious objection.

The notion that being asked to either buy health insurance and make health care accessible for one's fellow citizens--or to pay a small tax-- is a form of tyranny akin to George III's regime is simply bizarre: it shows how perverted and twisted public discourse has become in the United States. The assault on the individual mandate is really an assault on the public duty to assist other Americans in need, and in particular, an assault on the legal obligation to pay taxes to contribute to the general welfare. The assault on the health care bill is not a defense of liberty. It is a defense of selfishness.
Posted 2:31 PM by JB [link]